Abstract
In 2016, the International Civil Aviation Organization (ICAO) and International Maritime Organization (IMO) made important strides towards the regulation of emissions from international aviation and maritime transport. This was partially catalysed by the ‘ultimatum strategy’ of the European Union (EU), where the Union persistently threatened to take unilateral steps in the absence of multilateral action. As this article analyses, it appears that the Union is reluctant to relinquish its unilateral approach and align fully with both the ICAO Carbon Offsetting and Reduction Scheme and the IMO Global Data Collection Scheme. This raises questions under public international law as to the relationships between these competing measures. Amidst rising political pressures, this article considers the extent to which the unfolding multilateral policies of the ICAO and IMO may limit the regulatory competence of the EU. While the EU is an independent legal entity, it has been conferred far-reaching competences by its Member States who are themselves members of these other international organisations. Given the lack of clarity on clear hierarchical rules, an important role remains for the customary law of state jurisdiction in governing regulatory competence more generally. The final part of this article engages with recent discussions on the existence of an obligation to exercise jurisdictional self-restraint. It reflects on the tensions arising between respect for states’ regulatory autonomy and the prevention of ‘dangerous’ anthropogenic climate change.
Highlights
While greenhouse gas (GHG) emissions from international aviation and maritime transport are steadily on the rise, the ambition of multilateral responses was for a long time quite stagnant.1 The slow pace of multilateral responses has long been a source of frustration for the European Union (EU), that over the past years has responded with consistent steps towards its own unilateral emission reduction policy.2 Matters changed dramatically when both the International Civil Aviation Organization (ICAO) and International Maritime Organization (IMO) took considerable strides towards multilateral emission reduction responses
In 2016, the International Civil Aviation Organization (ICAO) and International Maritime Organization (IMO) made important strides towards the regulation of emissions from international aviation and maritime transport. This was partially catalysed by the ‘ultimatum strategy’ of the European Union (EU), where the Union persistently threatened to take unilateral steps in the absence of multilateral action. It appears that the Union is reluctant to relinquish its unilateral approach and align fully with both the ICAO Carbon Offsetting and Reduction Scheme and the IMO Global Data Collection Scheme
This came to a head in 2016, with the ICAO agreeing on a Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA),3 while the IMO adopted a Global Data Collection Scheme (DCS) for international shipping emissions
Summary
While greenhouse gas (GHG) emissions from international aviation and maritime transport are steadily on the rise, the ambition of multilateral responses was for a long time quite stagnant. The slow pace of multilateral responses has long been a source of frustration for the European Union (EU), that over the past years has responded with consistent steps towards its own unilateral emission reduction policy. Matters changed dramatically when both the International Civil Aviation Organization (ICAO) and International Maritime Organization (IMO) took considerable strides towards multilateral emission reduction responses. Supplementing these fields is the customary law of state jurisdiction, which governs state competence to regulate the conduct and consequences of an event.. Of particular relevance is the scholarly debate on jurisdictional ‘reasonableness’ and interest-balancing in light of the new position taken in the 2018 Restatement (Fourth) of US Foreign Relations Law.11 It considers the underlying normative question as to the desirable relationship between the ends and the means, in light of the objective in the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement of preventing ‘dangerous’ climate change, by keeping global warming ‘well below’ 2 °C.12 Of particular relevance is the scholarly debate on jurisdictional ‘reasonableness’ and interest-balancing in light of the new position taken in the 2018 Restatement (Fourth) of US Foreign Relations Law. It considers the underlying normative question as to the desirable relationship between the ends and the means, in light of the objective in the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement of preventing ‘dangerous’ climate change, by keeping global warming ‘well below’ 2 °C.12
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